Citation Nr: 0906020
Decision Date: 02/19/09 Archive Date: 02/27/09
DOCKET NO. 03-25 410 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Seattle,
Washington
THE ISSUES
1. Whether there was clear and unmistakable error in a
September 1991 rating decision in not assigning an initial
compensable rating for service-connected post-traumatic
stress disorder.
2. Entitlement to an effective date for a 100 percent
schedular rating for post-traumatic stress disorder prior to
March 22, 2001.
REPRESENTATION
Appellant represented by: Vietnam Veterans of America
WITNESS AT HEARING ON APPEAL
The Veteran's mother, N. B.
ATTORNEY FOR THE BOARD
J. Fussell, Counsel
INTRODUCTION
The Veteran, who is the appellant, had active service from
September 1988 to August 1989.
Historically, the Veteran filed her original claim for
service connection for post-traumatic stress disorder on
December 27, 1990. A September 1991 rating decision granted
service connection for post-traumatic stress disorder and
assigned an initial noncompensable disability rating, both
effective December 27, 1990. The Veteran filed a notice of
disagreement (NOD) with the assignment of the initial
noncompensable disability rating. A statement of the case on
that matter was issued on November 19, 1991 (and sent to the
address listed in the December 1990 claim). However, no
substantive appeal, VA Form 9 or equivalent, was ever
received.
This matter comes before the Board of Veterans' Appeals
(Board) from a March 2002 decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Seattle,
Washington, which granted an increase to a 100 percent
schedular rating for post-traumatic stress disorder, the
Veteran's only service-connected disorder, effective from the
date of receipt of the claim for increase on March 22, 1001.
An April 2004 RO decision granted basic eligibility to
Dependents' Educational Assistance under 38 U.S.C. Chapter
35 and also determined that the Veteran was not competent
for VA purposes to handle disbursement of her funds.
The Veteran's mother, testified during a telephonic hearing
at the RO in April 2006 in support of the claims. A
transcript thereof is on file.
On file is an October 2002 letter to the Veteran's mother
from the VA Puget Sound Healthcare System returning invoices
for medical services provided in December 2001. It was
stated that payment was not authorized because medical
service was available through VA and the Veteran could have
obtained care at either the Seattle or American Lake VA
facilities. Enclosed was information of procedural and
appellate rights.
In February 2003, a VA Form 21-4138, Statement in Support of
Claim, was received from a service representative which was
described as a notice of disagreement with the October 2002
determination as to reimbursement because it was the
understanding of the Veteran's parents that they had been
given permission for the Veteran to be treated by private
medical sources. It does not appear that the Veteran has
personally claimed entitlement to reimbursement. In any
event, this matter is referred to the RO for consideration,
to include whether the February 2003 communication
constitutes a valid notice of disagreement.
Lastly, at the April 2006 telephonic hearing, reference was
made to possibly claiming entitlement to special monthly
compensation. See Page 17 of that transcript. This matter
is referred to the RO for clarification.
FINDINGS OF FACT
1. An initial claim for service connection for post-
traumatic stress disorder was filed on December 27, 1990, and
a September 1991 rating decision granted the claim, assigning
an initial noncompensable disability rating, both effective
December 27, 1990.
2. After the Veteran filed a notice of disagreement with the
assignment of the initial noncompensable disability rating, a
statement of the case was issued in November 1991 and sent to
the address listed in the December 1990 claim, but no
substantive appeal, VA Form 9 or equivalent, was ever
received.
3. The September 1991 rating decision is final as to the
assignment of an initial noncompensable disability rating for
post-traumatic stress disorder and it is not shown that the
correct facts were not before VA or that statutory or
regulatory provisions extant at that time were incorrectly
applied in the September 1991 rating decision as to the
assignment of an initial noncompensable rating for service-
connected post-traumatic stress disorder.
4. The claim for a compensable disability rating the
service-connected post-traumatic stress disorder was received
on March 22, 2001; there was no pending claim for increase
prior to that date; and it was not factually ascertainable
prior to September 19, 2000, that an increase in disability
had occurred which warranted a 100 percent schedular rating.
CONCLUSIONS OF LAW
1. Because an appeal was not perfected, the September 1991
rating decision, assigning an initial noncompensable rating
for service-connected post-traumatic stress disorder, is
final and that rating decision was not clearly and
unmistakably erroneous. 38 U.S.C.A. § 7105(d)(3) (West
2002); 38 C.F.R. §§ 20.202, 3.104(a), 3.105(a), 20.302(b),
20.1103 (2008).
2. The criteria for the assignment of an effective date of
September 19, 2000, but no earlier, for the award of a 100
percent schedular rating for service-connected post-traumatic
stress disorder have been met. 38 U.S.C.A. § 5110(a), (b)(2)
(West 2002); 38 C.F.R. § 3.400(o) (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. VCAA
The Veterans Claims Assistance Act of 2000, codified in part
at 38 U.S.C.A. §§ 5103 and 5103A, and implemented in part at
38 C.F.R § 3.159, amended VA's duties to notify and to assist
a claimant in developing information and evidence necessary
to substantiate a claim. However, the provisions of the VCAA
are not applicable to a claim of clear and unmistakable
error. Livesay v. Principi, 15 Vet. App. 165 (en banc)
(2001); Parker v. Principi, 15 Vet. App. 407 (2002).
Unlike the claim of clear and unmistakable error, the
Veterans Claims Assistance Act, amending VA's duties to
notify and assist a claimant in developing information and
evidence necessary to substantiate a claim, does apply to an
earlier effective date claim.
The VCAA describes VA's duties to notify and to assist
claimants in substantiating VA claims. See 38 U.S.C.A.
§§ 5103, 5103A and 38 C.F.R § 3.159. This notice is only
required to be given in sufficient time to enable a claimant
to submit relevant evidence. The notice may be generic
without identifying evidence specific to the individual
claim, although it must be tailored to the nature of the
claim. It does not extend throughout the claim process.
Wilson v. Mansfield, 506 F.3d 1055, 1059-60 (Fed. Cir. 2007).
Duty to Notify
Under 38 U.S.C.A. § 5103(a) VA must notify a claimant of the
information and evidence needed to substantiate a claim,
which information and evidence VA will obtain, and which the
claimant must provide. See 38 C.F.R. § 3.159.
But, VA is not required to provide a predecisional
adjudication of what evidence is needed to grant a claim
because "the duty to notify deals with evidence gathering,
not analysis of already gathered evidence" nor is VA
required to provide notice "upon receipt of every piece of
evidence or information." Locklear v. Nicholson, 20 Vet.
App. 410, 415 (2006).
In service connection claims, the notice must also state what
is needed to substantiate all five elements of a service
connection claim, which are: 1) veteran status; 2) existence
of a disability; (3) a connection between the veteran's
service and the disability; 4) degree of disability; and 5)
effective date of the disability. Dingess v. Nicholson,
19 Vet. App. 473 (2006).
The VCAA notice was intended to be provided before the
initial unfavorable adjudication by the RO.
Pelegrini v. Principi, 18 Vet. App. 112 (2004).
In this case, the Veteran was provided with appropriate VCAA
notice as to her March 22, 2001, claim for a compensable
rating for service-connected post-traumatic stress disorder
by RO letter dated in November 2001.
The claimant was notified of the law and regulations
governing effective dates and rating service-connected
disorders by letter dated in March 2006, prior to
readjudication of the claims in the September 2006
supplemental statement of the case. The notice requirements
may be satisfied if any errors in the timing or content of
such notice are not prejudicial to the claimant. Mayfield v.
Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds,
444 F.3d 1328 (Fed. Cir. 2006).
As the essential fairness of the adjudications has not been
affected, any presumption of prejudicial error as to the
timing of the notice is rebutted. Sanders v. Nicholson, 487
F.3d 881 (Fed. Cir. 2007).
As for content of the VCAA notice, the documents
substantially comply with the specificity requirements of
Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying
evidence to substantiate a claim and the relative duties of
VA and the claimant to obtain evidence), of Charles v.
Principi, 16 Vet. App. 370 (2002) (identifying the document
that satisfies VCAA notice); and, of Pelegrini, supra (38
C.F.R. § 3.159 notice); and of Dingess v. Nicholson, 19 Vet.
App. 473 (2006) (notice of the five elements of a service
connection claim).
Duty to Assist
As required by 38 U.S.C.A. § 5103A, VA has made reasonable
efforts to identify and obtain relevant records in support of
the claims.
The Veteran was afforded the opportunity to testify at a
telephonic hearing at the RO but, instead, her mother
testified on the Veteran's behalf. The RO has obtained the
Veteran's service treatment records and available VA
treatment records. The Veteran has submitted private medical
treatment records.
The RO made determinations in February 2007 that records were
not available from the VA Puget Sound Healthcare system,
Madigan Army Medical Center, and the Bellingham Vet Center,
inasmuch as each had indicated that the records sought could
not be located.
As there is no indication that the Veteran was unaware of
what was needed for claim substantiation nor any indication
of the existence of additional evidence for claim
substantiation, there has been full VCAA compliance.
II. Clear and Unmistakable Error
A decision of the RO is final and binding as to the
conclusions based on the evidence on file at the time VA
issues written notification. 38 C.F.R. § 3.104(a).
A final and binding RO decision will be accepted as correct
in the absence of clear and unmistakable error. Where the
evidence establishes such an error, the prior decision will
be reversed or amended and it will have the same effect as if
the corrected decision had been made on the same date as the
reversed or amended decision. 38 C.F.R. § 3.105(a).
Clear and unmistakable error is defined as follows: Either
the correct facts, as they were known at the time, were not
before the adjudicator or the statutory provisions extant at
the time were incorrectly applied. It is the sort of error,
which had it not been made, would have manifestly changed the
outcome at the time it was made. It is an undebatable error,
so that it can be said the reasonable minds could only
conclude that the original decision was fatally flawed.
Russell v. Principi, 3 Vet. App. 310, 313 (1992) (en banc).
Clear and unmistakable error (CUE), is a very specific and
rare kind of 'error.' It is the kind of error, of fact or of
law, that when called to the attention of later reviewers
compels the conclusion, to which reasonable minds could not
differ, that the result would have been manifestly different
but for the error. Fugo v. Brown, 6 Vet. App. 40, 43-44
(1993). A disagreement with how facts were evaluated is
inadequate to raise the claim of CUE. Luallen v. Brown, 8
Vet. App. 92, 95 (1995).
Evidence of Record at the Time of the September 1991 Rating
Decision
According to the service treatment records, a June 1989
mental status evaluation noted that the Veteran had been
admitted as a psychiatric inpatient on May 19, 1989, and was
discharged to duty after four days of inpatient evaluation
and treatment with a diagnosis of an atypical personality
disorder, after being interviewed separately by three members
of the psychiatric staff. The condition was described as a
deeply ingrained, maladaptive pattern of behavior of long
duration which interfered with her ability to perform duty.
The disorder was so severe that her ability to function
effectively in the military environment was significantly
impaired. A mental status examination in June 1989 found
that her behavior was normal and she was fully alert. She
was fully oriented but her mood or affect was anxious. Her
thought processes were clear and her memory was good.
Later in June 1989 the Veteran waived a separation medical
examination. A subsequent treatment record, also in June
1989, reflects that the Veteran related having cut her wrist
because someone said something to her and she felt bad. She
had been hospitalized earlier for suicidal ideation. She had
been raped a few months ago. On examination she appeared
somewhat depressed but made very good eye contact. The
diagnosis was adjustment reaction with depressed mood.
The Veteran's DD 214 reflects that she was discharged from
service due to a personality disorder.
In June 1990 the Veteran underwent a psychiatric evaluation
by Dr. Koch for sequelae of having been beaten and raped
during service, as a result of which she contracted a
sexually transmitted disease. During service she had been
sexually harassed by men but no one listened to her
complaints and, so, she had been shunned. After a month, she
attempted suicide by slashing her wrist which led to further
shunning and her hospitalization. Because a military
psychiatrist had stated that she had a pre-existing
personality disorder, and not that her problems were due to
having been raped, she wanted the record set straight. She
had gotten herpes from her assailant. Her behavior changed
after having been raped. Depression had not been a problem
even though she commonly thought of and had dreams about the
rape. On mental status examination she was alert and
oriented. Her speech was clear, coherent, and normally
paced. Affect appeared full in range and appropriate to
thought content. There was no evidence of a thought
disorder. She was intact with respect to ability to attend,
recent and remote memory, and ability to abstract and solve
problems. The diagnoses were adjustment disorder with some
mixed emotional features and post-traumatic stress disorder.
The Veteran was evaluated by Dr. Koch in November 1990 to
determine whether she met the criteria for post-traumatic
stress disorder, which was felt to be likely. Her history
and current symptoms were related. She was not currently
interested in formal psychiatric treatment and felt good
about the progress she had made. Currently, she was not
sufficiently distressed by her persisting symptoms to engage
in psychotherapy or consider the use of psychotropic
medication. On mental status examination she was less
anxious than during the initial evaluation. She was alert
and oriented. Her speech was clear, coherent, and normally
paced. Her affect appeared full in range and appropriate.
There was no evidence of a thought disorder. The diagnosis
was post-traumatic stress disorder. It was noted that she
had experienced improvement in her symptoms and had learned
to accommodate herself to the persistence of her symptoms.
Her prognosis was good for additional improvement, though it
appeared more likely than not that her post-traumatic stress
disorder symptoms would persist for an indefinite period of
time to some degree.
The Veteran's original claim for service connection for post-
traumatic stress disorder was received in December 1990.
A VA social and industrial history in February 1991 reflects
that the Veteran's claim file was reviewed and included the
two evaluation reports by Dr. Koch. The Veteran was
currently living with her parents and had recently quit a job
to become a full-time student but was currently working part-
time cleaning hotel rooms. She denied receiving any
postservice counseling or therapy, other than the evaluations
by Dr. Koch. She had had two boyfriends since service
discharge. She had occasional intrusive recollection of her
trauma but these had decreased significantly and currently
had no flashbacks, sleep disturbance or nightmares. She did
not claim to have any concentration difficulties or memory
problems, apart from some amnesia of parts of her inservice
trauma. Even the increased irritability and aggressiveness
that she had initially experienced had decreased. She
reported having an elevated startle response but had not
emotional numbing or detachment. She socialized with
numerous friends but would have liked to be more attached to
them. She was very active in her schooling and social life.
She still experienced distress when viewing a movie or news
concerning rape. She left the interview as she had entered
it, i.e., emotionally calm and expressive and stated that she
planned to see a therapist or participate in group therapy to
further address issues resulting from her inservice trauma.
On VA psychiatric examination in February 1991 the Veteran's
claim file was reviewed. She had been employed as a
paralegal since October 1989. She reported that her life was
still more seclusive than prior to her trauma and she was not
as sociable. She reported being emotionally numbed and did
not trust people as much. She had an exaggerated startle
response and was guarded and watchful in public. Her guilt,
from a sense of being partly to blame for having been raped,
had greatly diminished. He did not have any sleep
disturbance, including no nightmares. Here initial terrible
trouble concentrating had improved. She had occasional
intrusive thoughts, perhaps once per month.
On mental status examination the Veteran's affect showed a
mixture of mild anxiety and mild depression. She spoke in a
clear voice. She was cooperative but there was sense of mild
underlying depression in the way that she related. She was
alert and fully oriented. There was no delusional thinking
and no hallucinations or thought disorder. Her insight
seemed fair and her judgment good. Her recent and remote
memory and recall were grossly intact.
The diagnosis was post-traumatic stress disorder and the
examiner felt that the Veteran's symptoms had clearly
improved significantly in recent months but she still had
residuals of post-traumatic stress disorder. There was no
evidence of any personality disorder.
A September 1991 rating decision granted the claim for
service connection for post-traumatic stress disorder which
was received on December 27, 1990, assigning an initial
noncompensable disability rating, both effective December 27,
1990.
After the Veteran filed a notice of disagreement with the
assignment of the initial noncompensable disability rating, a
statement of the case was issued in November 1991 and sent to
the address listed in the December 1990 claim, but no
substantive appeal, VA Form 9 or equivalent, was ever
received.
At the April 2006 telephonic RO hearing the Veteran's mother
and two service representatives were present. A service
representative stated that the VA psychiatric reports in 1991
incorrectly depicted the Veteran as having made a good
adjustment. See Hearing Transcript, Page 1. The Veteran's
mother testified that upon returning home from military
service the Veteran had stayed in her bedroom and didn't
leave the house. She bathed 3 to 4 times daily and would not
speak to anyone or talk about what happened to her. It was
almost a year before some of the Veteran's friends were able
to get her out of the house. See Hearing Transcript, Page 2.
The Veteran's service representative said that if the Veteran
had been evaluated in 1991 by a female evaluator, she might
have been more forthcoming in providing information that
revealed her true status at the time. It was possible that
the Veteran made light of the severity of her psychiatric
condition at the time of the 1991 evaluations in order to
avoid having to discuss the matter at all. See Hearing
Transcript, Page 2.
The service representative stated that over the years the
Veteran had at times been homeless and also had been in jail.
The Veteran's mother testified that the Veteran had wanted to
forget about having been raped and had gone to counseling and
tried to go to college. However, she became frightened of a
male college professors and ran out of college class, and had
never returned to school. There were other similar
occurrences having to do with her becoming frightened around
men or a man, including having attempted to speed away from a
male police officer. See Hearing Transcript, Page 3. Even
her marriage failed and her husband got custody of their
child. The Veteran's parents were now trying to raise the
child. A service representative stated that the Veteran had
had only a short time job in the last decade because a family
friend had hired her. Hearing Transcript, Page 4.
A service representative stated that the evidence showed that
the Veteran had been totally incapacitated due to post-
traumatic stress disorder since at least the mid-1990s.
Another service representative mentioned the Veteran's
medical treatment as being an informal claim and also
requested that the effective date for the 100 percent rating
be retroactive to the day after service discharge. Hearing
Transcript, Page 5. The hearing officer indicated that after
1991, the next medical or legal evidence on file was in 1999
when the Veteran was taken to the St. Joseph Hospital
emergency room by a sheriff's deputy for a mental evaluation.
The Veteran's mother indicated that the Veteran had not
sought psychiatric treatment prior to this but at that time
she had difficulty dealing with her pregnancy and had
panicked. Hearing Transcript, Page 6. A service
representative stated that the Veteran had seen Dr. Koch in
1993. The family had consulted with Dr. Levine, who was in
the same office with Dr. Koch, about the Veteran for years.
She had been treated sporadically by Dr. Levine for years.
Hearing Transcript, Pages 7 and 8. The Hearing Officer
recommended that any additional contemporary treatment
records be obtained and VA could provide necessary help in
obtaining them. A service representative indicated that they
would obtain such records. Hearing Transcript, Page 9.
The Veteran's mother stated that the initial noncompensable
rating was erroneous because the psychiatric disability was
so severe that the Veteran received an early service
discharge. Hearing Transcript, Page 10. A service
representative stated that upon discharge from active service
the Veteran had been hospitalized by VA in Seattle before the
Veteran was actually allowed to go home and it was requested
that these records be obtained. The mother testified that
this hospitalization had been for a few days. Hearing
Transcript, Page 12. The mother testified that she had been
unaware of the immediate postservice VA hospitalization until
so informed by a psychiatrist in 2001 (apparently the VA
psychiatrist that examined the Veteran in November 2001).
Hearing Transcript, Page 13. A service representative also
requested that consideration be given to a rating of less
than 100 percent prior to the current effective date for the
100 percent rating. Hearing Transcript, Pages 18 and 19.
The Hearing Officer also stated that possibly the Veteran had
not been hospitalized immediately after service at a VA
hospital but perhaps at the Madigan Army Medical Center and
that records of that facility would be requested. Hearing
Transcript, Page 20.
Finality of the September 1991 Rating Decision
An appeal consists of a timely filed NOD in writing and,
after an SOC has been furnished, a timely filed Substantive
Appeal. 38 C.F.R. § 20.200. Proper completion and filing of
a Substantive Appeal are the last actions the appellant needs
to take to perfect an appeal. 38 C.F.R. § 20.202.
With respect to an original statement of the case, a
substantive appeal must be filed within 60 days of the date
of mailing the statement of the case, 38 U.S.C.A.
§ 7105(d)(3), or within the remainder of the one-year period
from the date of notification of the rating decision being
appealed, whichever periods ends later. 38 C.F.R.
§ 20.302(b).
As the Veteran was properly notified of the September 1991
rating decision and of her procedural and appellate rights;
and, as she did not perfect an appeal from that
determination, the September 1991 rating decision became
final. 38 C.F.R. §§ 3.104(a), 20.1103.
The veteran now seeks to reverse or revise the September 1991
rating decision on the basis of clear and unmistakable error.
38 C.F.R. § 3.105(a). In pursuit of the claim, the Veteran
has made allegations of error of both fact and law.
Analysis
As for error of law, the Veteran argues that assignment of a
noncompensable rating for post-traumatic stress disorder by
the RO in the September 1991 rating decision was clearly and
unmistakably erroneous because the psychiatric disorder was
sufficiently severe to warrant the Veteran's discharge from
active service.
As to this, 38 C.F.R. § 4.131, in effect at the time of the
September 1991 rating decision, provided that mental
disorders induced by trauma or stress may clear up entirely,
permitting return to full or limited duty, or they may
persist as one of the recognized mental disorder,
particularly generalized anxiety disorder, or recur as post-
traumatic stress disorder. If the mental disorder is
sufficiently severe to warrant discharge from service, a
minimum rating of 50 percent will be assigned with an
examination to be scheduled within 6 months from discharge.
This provision was revised and renumbered when the schedular
rating criteria were revised effective November 7, 1996. As
renumbered, 38 C.F.R. § 4.129 now provides that when a mental
disorder that develops in service as a result of a highly
stressful event is severe enough cause the veteran's
discharge from service, the rating agency shall assign an
evaluation of not less that 50 percent and schedule an
examination within the six month period following the
veteran's discharge to determine whether a change in
evaluation is warranted.
The provisions of the old 38 C.F.R. § 4.131 (in effect at the
time of the September 1991 rating decision) and the new
provision 38 C.F.R. § 4.129, as revised on November 7, 1996,
are essentially the same. However, as noted in Dodge v.
Brown, 5 Vet. App. 6, 7 (1993) (per curiam Order) when the
effective date of service connection is not the day after
service discharge but is more than one year after service
discharge, the provisions of the old 38 C.F.R. § 4.131, which
were in effect at the time of the September 1991 rating
decision, are not applicable. Significantly, the effective
date of service connection is the day after discharge when a
claim for service connection is filed within one year of
service discharge. In this case, the Veteran's claim of
service connection for post-traumatic stress disorder was
filed in December 1990, more than one year following
discharge from service. As such, the law was not misapplied
in the 1991 rating decision.
Also, as it has not been shown that rating criteria of
Diagnostic Code 9411 extant at the time were incorrectly
applied, there is no valid claim of clear and unmistakable
error in the September 1991 rating decision on the basis of
error of law.
As for error of fact, the Veteran argues that she met the
criteria for a 100 percent schedular rating for post-
traumatic stress disorder at the time of the September 1991
rating decision.
The criteria for evaluation of service-connected post-
traumatic stress disorder were revised effective November 7,
1996.
Prior to November 7, 1996, and at the time of the September
1991 rating decision being challenged on the basis of clear
and unmistakable error, 38 C.F.R. § 4.129 provided that
social integration is one of the best evidences of mental
health and reflects the ability to establish (together with
the desire to establish) healthy and effective interpersonal
relationships. Poor contact with others may be an index of
emotional illness; however, social inadaptability is to be
evaluated only as it affects industrial adaptability. The
principle of social and industrial inadaptability as the
basic criteria for rating disabilities for mental disorders
contemplates that those abnormalities of conduct, judgment,
and emotional reactions, which affect economic adjustment,
i.e., which produce impairment of earning capacity.
38 C.F.R. § 4.132 provided that the severity of a psychiatric
disability is based upon actual symptomatology, as it affects
the social and industrial adaptability. Two of the most
important elements are time lost from work and decrease in
work efficiency. The examiner's classification of the
disease is not determinative but the report and analysis of
the symptoms and full consideration of the whole history will
be. It is necessary to consider the frequency, severity, and
duration of prior psychotic episodes, if any, and the
veteran's capacity for adjustment during period of remission.
A noncompensable rating was warranted for psychoneuroses when
there were neurotic symptoms which may somewhat adversely
affect relationships with others but which did not cause
impairment of working ability. A 10 percent rating was
warranted for psychoneuroses when the criteria for 30 percent
rating were not met but there was emotion tension or other
evidence of anxiety productive of mild social and industrial
impairment. A 30 percent rating was warranted when there was
definite impairment in the ability to establish or maintain
effective and wholesome relationships with people. The
psychoneurotic symptoms resulted in such reduction in
initiative, flexibility, efficiency and reliability levels as
to produce considerable industrial impairment. Definite
means moderately large in degree" and is "more than
moderate but less than rather large." Hood v. Brown, 4 Vet.
App. 301 (1993); VAOGCPREC 9-93, 59 Fed. Reg. 4753 (1994);
38 U.S.C.A. § 7104(c).
A 50 percent rating was warranted when the ability to
establish and maintain effective or favorable relationships
with people was substantially impaired. By reason of
psychoneurotic symptoms the reliability, flexibility and
efficiency levels were so reduced as to result in severe
industrial impairment.
A 70 percent rating was warranted when the ability to
establish and maintain effective or favorable relationships
with people was seriously impaired. The psychoneurotic
symptoms were of such severity and persistence that there is
pronounced impairment in the ability to obtain and retain
employment.
The pre-November 1996 psychoneurotic rating criteria for a 70
percent rating addressed social adaptability and industrial
impairment but failed to indicate whether these two criteria
were independent bases or, alternatively, must be read
conjunctively so that both are met for a 70 percent rating.
In Diorio v. Nicholson, 20 Vet. App. 193 (2006) the Court
held that for a 70 percent rating under the pre-November 1996
psychoneurotic rating criteria the two criteria, social
adaptability and industrial impairment, were alternate means
for assigning a 70 percent disability rating. (The Court
also noted that these types of criteria social adaptability
and industrial impairment were also set forth for the pre-
November 1996 psychoneurotic rating criteria for 50 percent
and 30 percent ratings).
A 100 percent rating was warranted when the attitudes of all
contacts except the most intimate were so adversely affected
as to result in virtual isolation in the community. Or, if
there were totally incapacitating psychoneurotic symptoms
bordering on gross repudiation of reality with disturbed
thought or behavioral processes associated with almost all
daily activities such as fantasy, confusion, panic and
explosions of aggressive energy resulting in profound retreat
from mature behavior. Or, if the veteran was demonstrably
unable to obtain or retain employment. "[T]he criteria in
38 C.F.R. § 4.132, DC 9411[,] for a 100% rating are each
independent bases for granting a 100% rating." Johnson v.
Brown, 7 Vet. App. 95, 97 (1995) (see also Carpenter v.
Brown, 8 Vet. App. 240, 243 (1995)). In Kingston v. West, 11
Vet. App. 272, 273 (1998) (per curiam) the Court rejected the
premise that, as to a 100% rating, a spouse is as a matter of
law the "most intimate" 'contact'.
While the Veteran's psychiatric disability was severe enough
for her to be discharged from active service in September
1989, she did not file her initial claim of service
connection until December 1990. The private and VA clinical
records show that she had made a significant adjustment with
the VA psychiatric examination repeatedly stating that her
anxiety and depression were mild. While it is now speculated
that the Veteran might have been more forthcoming as to her
symptoms and overall disability if she had been provided VA
evaluations and examinations by women rather than by men,
this amounts to no more than speculation and does not rise,
even when considered with the severity of her disability
leading to her service discharge, to the level of clear and
unmistakable error. Hindsight, per se, does not establish a
basis on which to find clear and unmistakable error in a
prior rating decision. Moreover, the Veteran sought
evaluation by private psychiatrist on two occasions in 1990
and he happened to be male. In addition, the reports in June
and November 1990 of that private psychiatrist are consistent
with the findings reported by the two VA evaluators in 1991.
As none of the distinguishing criteria for a compensable
rating for post-traumatic stress disorder were factually
shown, i.e., emotion tension or other evidence of anxiety
productive of mild social and industrial impairment, the RO's
assignment in September 1991 of a noncompensable rating was
in accordance with the rating criteria under Diagnostic Code
9411 in effect at that time.
It has not been shown that the correct facts, as they were
known at the time, were not before the adjudicator. There is
no evidentiary support for the claim of clear and
unmistakable error in the September 1991 rating decision on
the basis of error of fact. Specifically, attempts were made
to locate medical records of hospitalization which the
Veteran's mother suggested were created in 1989 or 1990.
However, those attempts were unsuccessful. There is
otherwise no reference in the records on file at the time of
the September 1991 rating decision (or thereafter) which
support the mother's assertion that the Veteran was
hospitalized immediately upon service discharge and before
returning home.
Also, there was at least an implied allegation that the
complete records of the Veteran's inservice hospitalization
following her trauma should have been obtained because these
would have given a more complete picture of her disability
for rating purposes.
However, to the extent that these allegations assert a
failure in the duty to assist in evaluating the Veteran's
symptoms of post-traumatic stress disorder, a breach of the
duty to assist cannot form the basis for a claim of clear and
unmistakable error as such a breach creates only an
incomplete, rather than an incorrect, record. Caffrey v.
Brown, 6 Vet. App. 377, 384 (1994).
As there is no evidence that the correct facts, as they were
known at the time, were not before the RO, or that the
statutory or regulatory provisions extant at the time were
incorrectly applied, the September 1991 rating decision by
the RO, assigning a noncompensable rating for post-traumatic
stress disorder, was not clearly and unmistakably erroneous.
III. Earlier Effective Date
Factual and Procedural Background
At the telephonic hearing in April 2006, the Veteran's mother
asserted that the Veteran was entitled to an effective date
in the 1990s for the award of the 100 percent rating for
service-connected post-traumatic stress disorder. This in
part is based on the claim of clear and unmistakable error in
rating decision in September 1991.
As previously discussed in this decision, the Board has not
found clear and unmistakable error in the September 1991
rating decision. By operation of law, that rating decisions,
addressing the rating of service-connected post-traumatic
stress disorder, became final and, as held by the Board in
this decision, is not subject to reversal or revision on the
basis of clear and unmistakable error.
On March 22, 2001, the veteran filed a claim for an increased
rating for her service-connected post-traumatic stress
disorder. The RO adjudicated the claim in a March 2002
rating decision, increasing the rating for service-connected
post-traumatic stress disorder to a 100 percent schedular
rating, effective the date of receipt of the claim on March
22, 2001. After the veteran was notified of the decision and
of her procedural and appellate rights, she raised the issue
of an earlier effective date for the award of a 100 percent
schedular rating.
Law and Regulations
As previously noted, the criteria for rating psychiatric
disabilities has been revised since the prior rating decision
of September 1991. Effective November 7, 1996, 38 C.F.R.
§ 4.126(c) provides that when evaluating a mental disorder
consideration will be given to the frequency, severity, and
duration of symptoms, the length of remissions and capacity
for adjustment during that time. The evaluation will be
based on all evidence of record and not solely an examiner's
assessment of the level of disability. 38 C.F.R. § 4.126(a).
While social impairment is considered, a rating will not be
assigned solely on the basis of social impairment. 38 C.F.R.
§ 4.126(b).
Under 38 C.F.R. § 4.130, General Rating Formula for Mental
Disorders, (1996) which became effective November 7, 1996,
total occupational and social impairment, due to such
symptoms as: gross impairment in thought processes or
communication; persistent delusions or hallucinations;
grossly inappropriate behavior; persistent danger of hurting
self or others; intermittent inability to perform activities
of daily living (including maintenance of minimal personal
hygiene); disorientation to time or place; memory loss for
names of close relatives, own occupation, or own name
warrants a 100 percent rating.
The specified factors for each incremental psychiatric rating
are not requirements for a particular rating but are examples
providing guidance as to the type and degree of severity, or
their effects on social and work situations. Thus, any
analysis should not be limited solely to whether the symptoms
listed in the rating scheme are exhibited; rather,
consideration must be given to factors outside the specific
rating criteria in determining the level of occupational and
social impairment. Mauerhan v. Principi, 16 Vet. App. 436,
442 (2002).
Generally, the effective date of a rating increase is the
date of receipt of the claim or the date entitlement arose,
whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R.
§ 3.400(o)(1). The exception to the rule allows for the
earliest date as of which it was factually ascertainable that
an increase in disability had occurred if the claim is
received within 1 year from such date; otherwise, the
effective date is the date of receipt of the claim. 38
U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).
Analysis
For the reasons expressed above, the rating decision of
September 1991, to the extent a determination was made on the
rating for service-connected post-traumatic stress disorder,
is final. 38 C.F.R. § 3.104(a). A final and binding RO
decision will be accepted as correct in the absence of clear
and unmistakable error. 38 C.F.R. § 3.105(a). In the
absence of clear and unmistakable error in the rating
decisions, the Board is precluded, with the one exception
addressed above, from using the same body of evidence
previously considered in these rating decisions as evidence
of entitlement to a higher rating prior to March 22, 2001,
the date of receipt of the current claim for increase.
It is alleged that a 100 percent schedular rating should have
been made effective the day after discharge from active
service. However, the effective date of any level
compensation can not predate the effective date of the grant
of service connection.
In this regard, if an original claim for service connection
is received within one year after discharge, the grant of
service connection based on that claim with be effective the
day after service discharge. Otherwise, the effective date
of an original claim for service connection received more
than one year after the day of service discharge, will be
effective no earlier than the date of receipt of that
original claim. See 38 U.S.C.A. § 5110(a (West 2002) and
38 C.F.R. § 3.400(b)(2)(i) (2008). Here, the original claim
for service connection was received in December 1990, more
than a year after service discharge in August 1989. And so,
not even the initial noncompensable rating may be assigned
prior to receipt of the original service connection claim in
December 1990.
In accordance with 38 C.F.R. § 3.400(o)(1), the critical
dates in assigning the effective date for the 100 percent
rating are (1) the date of receipt of the current claim
(March 22, 2001, which the RO assigned) and (2) the date that
it is factually ascertainable that the increase in disability
occurred.
Thus, the remaining issue is whether under 38 C.F.R.
§ 3.400(o)(2) it was factually ascertainable that an increase
in disability had occurred within 1 year from March 22, 2001.
The term "increase" as used in 38 C.F.R. § 3.400 means an
increase to the next disability level. Hazan v. Gober, 10
Vet. App. 511, 519 (1997). Stated differently, at issue is
whether the veteran met the criteria for a 100 percent
rating, considering all the evidence of record, during the
period between March 22, 2000, and March 22, 2001.
On file are numerous clinical records addressing the
Veteran's psychiatric status after the date of receipt of the
March 22, 2001, claim for increase. These include records of
Dr. Koch as well as from a clinical psychologist, A. Zold who
reported in February 2004 having first treated the Veteran in
July 2001.
Also, the VA psychiatric examination in November 2001 and the
official psychiatric in March 2004 were after receipt of the
March 2001 current claim for increase.
Court records of 1998 and police records from 1999 to 2001
are on file and document the multiple bizarre behavioral
problems that the Veteran was having at those times but these
are not sufficient for rating purposes as they do not address
the governing rating criteria. Even the statements of the
Veteran's mother and her testimony, which clarify some of the
difficulties the Veteran was having post-date the March 2001
claim for increase.
Also on file are records pertaining the Veteran's award of
Social Security Administration disability benefits. This
award was made effective August 7, 2001, which is also after
the date of receipt of the increase rating claim. These
records also include records of Dr. Zold and the
abovementioned clinical psychologist which post-date the
claim for increase.
The evidence also includes records of the Veteran having
sought counseling due to a legal dispute with her husband
over custody of their child. Records of September 12, 2000,
reflect that the Veteran wished it to be known that while she
was confused about the custody matter, specifically not
understanding why supervision of her visits to the child was
needed, she was no longer angry because she and her husband
had now separated. Her past difficulty holding down a job
was noted but she was now looking for a full time job. She
was socially isolated.
A Brief Mood Survey of September 19, 2000, reflect that the
Veteran had a lot of sadness and loss of pleasure or
satisfaction in life and a lot of sudden feelings of terror
or overwhelming fear. She had a moderate amount of feelings
that she might be going crazy or that she might suffocate or
lose consciousness. She somewhat had feelings of
discouragement or hopelessness and low self-esteem,
frustration and annoyance as well as anxiousness, being
frightened, worrying, tenseness, and nervousness.
A counseling record dated September 20, 2000, reflects that
she had quit a job after only four days because she did not
get along with her supervisor. She wanted to be more aware
of what she was feeling so that she could figure out what she
wanted rather than reacting. She was aware that she made
interpersonal situations worse at times.
The Board finds, with the favorable resolution of doubt, that
the September 19, 2000, Mood Survey contained sufficient
evidence for rating purposes to conclude that, based on all
the evidence of record including the Veteran's ongoing
bizarre behavior problems which led to criminal prosecutions,
a 100 percent schedular rating was warranted for service-
connected post-traumatic stress disorder at that time.
However, the evidence prior thereto simply does not contain
information which addresses the psychiatric rating criteria.
Thus, it is not factually ascertainable that prior to
September 19, 2000, a 100 percent schedular rating was
warranted for the service-connected post-traumatic stress
disorder.
Also, there was no pending claim, that is, a claim that had
not been finally adjudicated in the interim between the RO's
September 1991 rating decision and the date of receipt of the
current claim, March 22, 2001. 38 C.F.R. §§ 3.155, 3.160(c).
Accordingly, an effective date of September 19, 2000, but no
earlier, for the assignment of a 100 percent schedular rating
for the service-connected post-traumatic stress disorder is
warranted.
ORDER
The claim to establish clear and unmistakable error in a
September 1991 rating decision, assigning an initial
noncompensable rating for service-connected post-traumatic
stress disorder, is denied.
An effective date of September 19, 2000, but no earlier, for
the assignment of a 100 percent rating for the service-
connected post-traumatic stress disorder is granted, subject
to applicable law and regulations governing the award of
monetary benefits.
____________________________________________
L.B. CRYAN
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs